concurring.
I generally agree with the majority that, under the facts of the case, the proposed use of the lot in question violates the three quoted restrictive covenants. However, I believe the judgment should be affirmed and modified solely on the basis that the restriction against multiple housing precludes the use of any residential lot, as originally platted, for more than one single-family residence.
The restriction prohibiting multiple housing is the identical covenant construed by this court in Pardo v. Southampton Civic Club, 239 S.W.2d 141, 144 (Tex.Civ.App.— Galveston 1951, writ ref’d). In that case this court held that the covenant restricted every residential lot in the addition “to the exclusive use of a residence of a single family.”
In Fischer v. Reissig, 143 S.W.2d 130 (Tex.Civ.App. — Austin 1940, writ ref’d), a similar fact situation was presented. There, two residences were constructed on a single lot, and the trial court granted a mandatory injunction to require the removal of one of them. On appeal, the defendants contended that the construction of the second house did not violate the restrictions because there was no express prohibition against the erection of more than one dwelling house on a single lot. There, the restriction required that “the dwelling house, as distinguished from outhouses and servant’s quarters, shall face the street upon which the lots front ...,” and the appellate court decided that since the covenant referred to “dwelling house” in the singular, the subdivider’s clear intent was to allow only one dwelling house on each lot. In reaching its decision the court recognized that the restrictions did not expressly prohibit multiple dwelling houses on a single lot, and that the restrictions should be given that construction which favored the free and unrestricted use of the property.
• A similar situation was presented in MacDonald v. Painter, 441 S.W.2d 179 (Tex. 1969), but the court in that case reached a *280different result. There, the restrictive covenant provided that:
3. All improvements to be erected on said premises shall be built for residence purposes, or for use in connection with residences; and the main residence so erected thereon shall front on John D. McCall Road; the front building line of the land hereby conveyed shall be not less than 30 feet from the property line of said premises, fronting on John D. McCall Road; and no residence, or any part thereof, and no outbuildings of any kind, shall ever be erected or placed upon the space between said building line and said property line.
' On the basis of this provision, a group of lot owners sought an injunction to prevent the resubdivision of certain lots and the erection of multiple duplexes on such lots. The trial court denied injunctive relief, but the Court of Civil Appeals reversed, holding that injunctive relief was appropriate. The Texas Supreme Court reversed the decision of the appellate court, ruling that the restrictions did not preclude such resubdivision and use. The court, speaking through Justice Pope, distinguished the holding of the Austin Court of Appeals in Fischer v. Reissig, supra, explaining that in the Fischer case the restrictions demonstrated the subdivider’s intent to prohibit more than one single residence on each original lot. The court pointed out that in the case then before it, the restrictions used the plural term “residences,” when referring to the improvements which could be erected on the lots, so that it could not be said that the restrictions prohibited the erection of multiple housing on a single lot. The court also discussed and distinguished several other cases which prohibited multiple housing on single lots. Green v. Gerner, 283 S.W. 615, aff'd, 289 S.W. 999 (Tex.Com.App.1927); White v. Hansen, 36 S.W.2d 456 (Tex.Com.App.1931).
The Southampton Place restrictions do not expressly prohibit resubdivision of the platted lots and, as the majority opinion states, such a prohibition cannot be inferred merely from the filing of the subdivision plat. MacDonald v. Painter, supra. Therefore, the owner of a lot may partition the ownership of the lot in such manner as he might wish. However, the restrictions do expressly prohibit the use of the original platted lots for “multiple housing”, and, in my opinion, the proposed use of the subject lot for multiple residential housing would clearly nullify the intent of the subdivider. In this respect, I feel this court is bound to follow the decision of the Austin Court of Appeals in Fischer v. Reissig, supra, in which writ of error was refused by the Texas Supreme Court.
The summary judgment proof shows, as a matter of law, that the defendants’ proposed use of the lot in question violates the covenant prohibiting multiple housing because each residential lot in the subdivision, as originally platted, is restricted to one single-family residence.
I would modify the judgment to delete the provisions prohibiting partition of ownership and would affirm the judgment prohibiting the use of the lot for more than one single-family residence.